On August 23, 2016, the National Labor Relations Board (“NLRB” or the “Board”) ruled in a 3-1 decision that graduate students working as teaching and research assistants at private colleges and universities may engage in collective bargaining. In doing so, the NLRB expressly overruled its prior decision in Brown University, which held that graduate assistants did not enjoy this right. Graduate assistants at private institutions may now unionize and bargain on topics such as benefits and working conditions.

In this case, graduate students at Columbia University filed a petition seeking to collectively bargain. The NLRB regional director initially denied the application based on the existing Brown University precedent, where the Board ruled that graduate assistants did not meet the statutory definition of “employee” in the National Labor Relations Act (NLRA) because the relationship between the institution and its graduate students was “primarily educational.” The current Board rejected that analysis, finding it was untethered from the statutory text. Even if the overall relationship encompassed more than employment, the Board found that graduate assistants meet the statutory definition of “employee” if they are in an employment relationship under traditional common-law tests.

The three Democratic members of the current Board joined the majority, and the sole Republican member dissented. (The fifth Board seat has been vacant since 2015). The dissent expressed concern about the broad swath of roles that could be encompassed by the ruling, noting that the majority did not delineate employment roles based on the specific characteristics of different relationships (teaching assistants, graders, research assistants, etc.). Further, the dissent worried that the ruling may wreak havoc at institutions when their fundamental purpose of providing an education for students is disturbed by the risks of “breakdown” and “economic weapons” associated with collective bargaining.

This decision is the most recent in a long line of cases where the NLRB has changed course on this issue. Indeed, in 2000, the Board held that graduate assistants were statutory employees, only to have that decision overruled just four years later in Brown University. Thus, litigation on this topic is likely far from over. Columbia University has the right to appeal this decision but has not yet announced whether it will do so. Any such appeal would likely be to either the United States Court of Appeals of the Second Circuit or the United States Court of Appeals for the District of Columbia Circuit. We will monitor any subsequent appeal to this decision and provide updates on our blog.

What this means to you

Graduate assistants at private institutions now have the right to unionize and collectively bargain. The scope of “employees” or “roles” covered by this decision is not precisely defined and will likely be developed by future decisions. Private institutions should be prepared to appropriately monitor and evaluate collective-bargaining developments on their campuses. Public institutions are not directly impacted by this ruling, as collective bargaining there is governed exclusively by state law.